Torts; Conservatorship; Whether a Conserved Person has the Capacity to
Consent to a Sadomasochistic Sexual Relationship. The plaintiff is the
mother of Kendall Kortner, who died shortly after the trial in this case
concluded. The plaintiff was appointed the conservator of her daughter's
person in 1994, when Kendall was twenty-four. She brought this action in her
capacity as conservator, alleging that the defendant was liable for sexual
battery, civil assault and intentional infliction of emotional distress. The
plaintiff alleged that the defendant, a man that Kendall met on the Internet,
had engaged in a degrading sadomasochistic sexual relationship with her adult
daughter. Central to the plaintiff's claims was the allegation that, due to Kendall's mental disabilities—including clinical depression, borderline personality
disorder, bulimia and anorexia—she was unable to consent to what the plaintiff
characterized as the defendant's mistreatment and abuse. The defendant
asserted as a special defense that Kendall was an adult capable of making
intelligent choices in matters relating to sex and that she had consented to
any sexual contact she had with him. The plaintiff moved to strike the consent
defense and to preclude the defendant from raising the issue of consent at
trial. The trial court denied her motions, ruling that Kendall's conserved
status did not preclude the defendant from presenting evidence of consent and
that it should be left to the jury to determine whether Kendall had the ability
to consent. The jury returned a verdict for the defendant, indicating, by way
of its responses to interrogatories, that, while the defendant had in fact engaged
in a sadomasochistic sexual relationship with Kendall, the plaintiff had failed
to prove that Kendall did not have the capacity to consent to the sex acts.
The plaintiff appeals from the judgment on the jury's verdict, claiming that
the trial court wrongly permitted the issue of consent to reach the jury
because the probate court's appointment of the plaintiff as the conservator of
Kendall's person constituted a judicial determination that Kendall was
incompetent and therefore incapable of consenting to sexual conduct. The
plaintiff also argues that, as a matter of public policy, one cannot be deemed
to have consented to sexual abuse and degradation.